Citation Nr: 1342110 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 08-10 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran had active service from October 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 RO decision in which the RO denied the benefit sought on appeal. In March 2010 and November 2010, the Board remanded the matter for additional evidentiary development. In November 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain an addendum medical opinion. The action specified in the November 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's hepatitis C did not have onset in service and is not caused by or otherwise related to the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Hepatitis C is not a disease recognized as chronic by 38 C.F.R. § 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). However, the law and regulations provide that no compensation shall be paid if a disability is the result of a veteran's own willful misconduct or the abuse of alcohol or drugs. See 38 U.S.C.A. §§ 105; 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2013). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCREC 7-99 (1999), 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCREC 2-98 (1998), 63 Fed. Reg. 31, 263 (February 10, 1998). The recognized risk factors for contracting the hepatitis C virus (HCV) are intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. See VBA Fast Letter 211B (98-110) (November 30, 1998). According to VA Fast Letter 04-13 (June 29, 2004), HCV is spread primarily by contact with blood and blood products. The highest prevalence of HCV infection is among those with repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). Id. The Fast Letter further states that occupational exposure to HCV may occur in the health care setting through accidental needle sticks. Id. Thus, a veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. Id. According to the Fast Letter, there have been no case reports of HCV being transmitted by an air gun injection. Id. Nevertheless, it is biologically plausible. Id. The Fast Letter concludes that it is essential that the examination report upon which the determination of service connection is made include a full discussion of all modes of transmission, and a rationale as to why the examiner believes that a particular mode of transmission was the source of the veteran's hepatitis C. Id. In this appeal, the Veteran seeks service connection for hepatitis C, based on his belief that he was exposed to the hepatitis C virus via "air jet gun" inoculations he received in service. In his correspondence to the VA pertaining to this claim, he has consistently maintained that his only potential risk factor for contracting hepatitis C was having been vaccinated with the air jet gun. The Veteran's service treatment records include an immunization record that documents that a series of immunizations were administered to the Veteran in October and November 1969 although the method of immunization is not specified in the record. There is no evidence of any treatment for hepatitis C or any symptoms associated with the disease during the Veteran's active military service. Post-service medical records include records from Dr. D.C. reflecting an initial diagnosis of hepatitis C in October 2004. At that time, in the context of obtaining medical care, rather than in the current context of seeking compensation benefits, the Veteran reported to his treating physician that when he was young he had experimented with intravenous drug use. In May 2007, the Veteran submitted a letter from Dr. B.B., who reported that he has been involved in treating the Veteran for liver cirrhosis and hepatitis. Dr. B.B. noted that the Veteran had reported immunizations using air guns, and that it is "one possibility for how [the Veteran] may have contracted his hepatitis C." He further noted that the Veteran had denied transfusions, tattoos, or intravenous drug use. A VA medical examination and opinion were obtained in March 2008. The Veteran denied blood transfusions, use of needles for intravenous drug use, contact with a known hepatitis patient or anyone with jaundice. The physician explained that in the absence of clear documentation that the Veteran was immunized using air guns, no opinion as to the likelihood that the Veteran's hepatitis was caused by immunization in service could be offered without resorting to speculation. However, the examiner noted that while it may be biologically plausible for hepatitis C to be transmitted with the use of air guns, that does not mean that such transmission of hepatitis C occurs with a 50 percent or greater confidence level. Unfortunately, the VA examiner was not provided with the Veteran's complete claims folder, including the private treatment record from Dr. D.C. noting a history of intravenous drug use. After reviewing all the evidence of record, in a December 2012 addendum opinion, the examiner concluded that "it is at least as likely as not that the Veteran contracted hepatitis C with the use of intravenous drugs." Based on all the above, the Board finds that the preponderance of the evidence is against the Veteran's claim. The VA examiner who reviewed the Veteran's claim concluded that his hepatitis C was most likely contracted through intravenous drug use. The examiner noted that while it is theoretically possible that hepatitis C could be contracted through the use of air gun injections, that does not mean that such transmission of hepatitis C occurs with a 50 percent or greater confidence level. While Dr. B.B. stated that the air gun injections may be the cause of the Veteran's hepatitis C, his opinion is speculative and speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Furthermore, Dr. B.B. appears to have based his speculative opinion solely on the Veteran's own account of possible risk factors and the Board finds that the Veteran has been less than forthcoming in this regard. Although since he filed a claim for disability benefits the Veteran has insisted that air gun inoculations in service is his only known risk factor for hepatitis C, private medical records show that in 2004, he reported a history of experimenting with intravenous drug use. The Veteran's report of intravenous drug use to Dr. D.C. is highly probative, because he was then reporting his medical history in the course of seeking medical treatment and had every incentive to provide an accurate account to ensure proper treatment. See LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). The Board finds that the Veteran's statements in 2004 are more probative than his later denials of intravenous drug use. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony) and Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board finds that the Veteran's claim that air gun inoculations are his only possible means of contracting hepatitis C is not credible. Furthermore, to the extent the Veteran has attempted to offer his own opinion regarding the etiology of his hepatitis C, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Even if the Board accepts that the Veteran received immunizations with an air gun in service, injections by air gun are not a recognized risk factor for hepatitis C based on the available scientific data. See VBA Fast Letter 211 (04-13). While VBA acknowledges that it is biologically plausible that the disease could be transmitted via air gun, the fact that such transmission is within the realm of possibility does not make transmission by this method probable or help establish that the Veteran in fact contracted hepatitis C in this manner particularly in the absence of a medical opinion that includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the Veteran's hepatitis C. The most probative evidence, including VA medical opinions and private treatment records, supports a finding that the Veteran's hepatitis C was contracted because of intravenous drug use. As noted above, such drug use, even if it occurred in service, cannot form the basis of a service connection claim. See 38 U.S.C.A. § 1110. For the above reasons, entitlement to service connection for hepatitis C must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in an April 2007 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs